ATTACHMENT A

 

 

AUTHORISING PROVISIONS

 

Subsection 504(1) of the Migration Act 1958 (the Act) provides, in part, that the     Governor-General may make regulations, not inconsistent with the Act, prescribing all matters which by the Act are required or permitted to be prescribed, or which are necessary or convenient to be prescribed for carrying out or giving effect to the Act.

In addition, the following provisions may apply:

 

*         subsection 5(1) of the Act, which provides that the term "prescribed" means prescribed by the regulations;

 

*         subsection 245AB(2) which provides that subsection 245AB(1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:

o   using a computer system prescribed by the regulations to verify that matter;

o   doing any one or more things prescribed by the regulations;

 

*         subsection 245AC(2) which provides that subsection 245AC(1) does not apply if the first person takes reasonable steps at reasonable times to verify that the worker is not in breach of the work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a), including (but not limited to) either of the following steps:

o   using a computer system prescribed by the regulations to verify that matter;

o   doing any one or more things prescribed by the regulations;

 

*         subsection 245AE(2) which provides that subsection 245AE(1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:

o   using a computer system prescribed by the regulations to verify that matter;

o   doing any one or more things prescribed by the regulations;

 

*         subsection 245AEA(2) which provides that subsection 245AEA(1) does not apply if the first person takes reasonable steps at reasonable times before the referral to verify that the prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred, including (but not limited to) either of the following steps:

o   using a computer system prescribed by the regulations to verify that matter;

o   doing any one or more things prescribed by the regulations;

 

*         subsection 506A(1) of the Act, which provides that the regulations may provide for a person who is alleged to have contravened a civil penalty provision to pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

ATTACHMENT B

 

Details of the Migration Amendment Regulation 2013 (No. 3)

 

Section 1 - Name of Regulation

 

This section provides that this regulation is the Migration Amendment Regulation 2013
(No. 3) (the Regulation).

 

Section 2 - Commencement

 

This section provides that the Regulation commences on the commencement of Schedule 1 to the Migration Amendment (Reform of Employer Sanctions) Act 2013 (the Employer Sanctions Act).

 

The purpose of this section is to provide for when the amendments made by the Regulation commences.

 

Section 3 - Authority

 

This section provides that the Regulation is made under the Migration Act 1958 (the Act).

 

The purpose of this section is to set out the Act under which the Regulation is made.

 

Section 4 - Schedule(s)

 

This section provides that each instrument that is specified in a Schedule to this instrument is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this instrument has effect according to its terms. 

 

The purpose of this section is to provide for how the amendments in the Regulation operate.

 

Schedule 1 - Amendments

 

Migration Regulations 1994

 

Item [1] - Paragraph 2.103(2)(g)

 

This item omits the reference to section 140R and substitutes a reference to
section 506A in paragraph 2.103(2)(g) of Division 2.23 of Part 2A of the Principal Regulations.

 

The purpose of this amendment is to update the reference to the provision in the Act under which infringement notices are now issued.  Item 9 of the Employer Sanctions Act repeals section 140R of the Act and item 29 inserts new section 506A into the Act. 

Section 140R created a regulation-making power enabling a person who is alleged to have contravened a civil penalty provision to pay to the Commonwealth, as an alternative to civil penalty proceedings against the person, a specified penalty.  Section 140R was contained in Subdivision D of Division 3A of Part 2 of the Act which relates to Sponsorship obligations. 

As the Employer Sanctions Act creates new work-related civil penalty provisions, new section 506A has been drafted to create a new regulation-making power in relation to infringement notice schemes and this will apply to the new work-related civil penalty provisions, the current sponsorship civil penalty provisions and any future civil penalty provisions that may be enacted. 

 

Item [2] - At the end of regulation 5.19B

 

This item adds a note after regulation 5.19B, which provides that regulations 5.19C to 5.19F are reserved for future use.

 

The purpose of this amendment is to reserve regulations 5.19C to 5.19F for future use for the purposes of prescribing any matters in Division 5.3, which is a division that deals with general matters.

 

Item 3 - After Division 5.3

 

This item inserts new Division 5.3A after Division 5.3 of Part 5 of the Principal Regulations.  The heading of new Division 5.3A is "Offences and civil penalties in relation to work by non-citizens".

 

Regulation 5.19G       Allowing an unlawful non-citizen to work

 

New subregulation 5.19G(1) provides that for paragraph 245AB(2)(a) of the Act, the computer system operated by the Department, and known as "Visa Entitlement Verification Online", or "VEVO", is prescribed.

 

New paragraph 5.19G(2)(a) provides that for paragraph 245AB(2)(b) of the Act, a prescribed thing is the entry into a contract under which a party to the contract performs either or both of the following functions:

 

*         verifying that a person has the required permission to work in Australia (however that is described in the contract); or

*         supplying persons who have the required permission to work in Australia (however that is described in the contract).

New paragraph 5.19G(2)(b) provides that for paragraph 245AB(2)(b) of the Act, a prescribed thing is the inspection of:

*         a document that appears to be the worker's Australian passport; or

*         a document that appears to be the worker's New Zealand passport; or

*         a document that appears to be the worker's Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the worker; or

*         a document that appears to be a certificate of evidence of the worker's Australian citizenship, accompanied by a form of identification featuring a photograph of the worker; or

*         a document that appears to be the worker's Australian birth certificate, accompanied by a form of identification featuring a photograph of the worker; or

*         a document that appears to be a Certificate of Evidence of Resident Status for the worker, accompanied by a form of identification featuring a photograph of the worker; or

*         a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the worker, accompanied by a form of identification featuring a photograph of the worker.

The example after new subregulation 5.19G(2) provides that an example of a form of identification is a driver's licence.

Subsection 245AB(1) of the Act provides that a person (the first person) contravenes this subsection if:

*         the first person allows, or continues to allow, another person (the worker) to work; and

*         the worker is an unlawful non-citizen.

The note after new subregulation 5.19G(2) mirrors subsection 245AB(2) of the Act and provides that subsection 245AB(1) of the Act does not apply if reasonable steps are taken at reasonable times to verify that a worker is not an unlawful non-citizen, including
(but not limited to) either of the following steps:

 

*         using a computer system prescribed by the regulations to verify that matter;

*         doing any one or more things prescribed by the regulations.

The purpose of this note is to outline the exception/specific defence to contravening subsection 245AB(1) of the Act. 

The purpose of new regulation 5.19G is to prescribe the computer system that a person could use to verify that a worker is not an unlawful non-citizen (the matter) for the purposes of paragraph 245AB(2)(a) and to prescribe steps that a person could take to verify that a worker is not an unlawful non-citizen for the purposes of paragraph 245AB(2)(b). 

New subregulation 5.19G(1) prescribes the Visa Entitlement Verification Online computer system, which is also known as VEVO, as the computer system that the first person can use to verify that the worker is not an unlawful non-citizen.

VEVO is a free, online service that allows visa holders and registered Australian organisations (such as Registered Migration Agents, Australian employers, labour suppliers, education providers, financial institutions and government agencies) to check the details and entitlements of a visa.  It provides real time checks and also enables visa holders to "push" visa entitlement information to third parties.

New paragraph 5.19G(2)(a) prescribes, as a thing that the first person can do to verify that a worker is not an unlawful non-citizen, the entry into a contract under which a party to the contract performs one or more of the following functions:

*         verifying that a person has the required permission to work in Australia (however that is described in the contract); or

*         supplying persons who have the required permission to work in Australia (however that is described in the contract).

Assuming that the contract entered into between the first person and another person was entered into at a reasonable time and was a valid written contract, the first person could rely on this contract to establish a defence to subsection 245AB(1) of the Act. 

It is intended that a contract entered into between the first person and another person could be a general contract and could either be a standing contract or an ongoing contract for the supply of labour.  For example, a contract could state that the labour supplier undertakes to only supply a labour force made up of people who can lawfully undertake the relevant work, such as Australian and New Zealand citizens, Australian permanent residents and
non-citizens with the relevant work entitlements attached to a current visa.  Conversely, the contract could include a specific clause to the effect that the labour supplier undertakes not to supply workers who cannot lawfully perform the relevant work.  Model contractual clauses will be made available to guide employers.

New paragraph 5.19G(2)(b) prescribes, as a thing that the first person can do to verify that a worker is not an unlawful non-citizen, the inspection of prescribed documents that appear to be evidence of a worker's lawful status in Australia. 

Assuming that the inspection of the documents listed in paragraph 5.19G(2)(b) was done at a reasonable time, the first person could rely on this inspection to be a reasonable step and therefore establish a defence to subsection 245AB(1) of the Act. 

The types of acceptable documents that are listed in new paragraph 5.19G(2)(b) are the identification documents which can establish a person's lawful status in Australia. 
Further information about what documents are acceptable evidence of a person's lawful status in Australia can be obtained from the Department. 

The listing in paragraph 5.19G(2)(b) of documents which appear to be a document they purport to be, rather than the actual documents, is to provide a reasonable practical allowance that the person inspecting the document should not be required to determine the actual veracity of the document(s) being sighted, beyond that the document appears to be what it purports to be. 

It is intended that if a first person verifies at a reasonable time that a worker is not an unlawful non-citizen, by using VEVO, by entering into a contract with another party to perform the function of verifying that a worker is not an unlawful non-citizen or by inspecting prescribed documents that appear to be evidence of a worker's lawful status in Australia, that person would be able to establish the specific defence contained in
subsection 245AB(2) and therefore an exception to subsection 245AB(1) of the Act.

The drafting of the defence in subsection 245AB(2) makes it clear that the reasonable steps specified in paragraphs 245AB(2)(a) and 245AB(2)(b) are not exhaustive.  It is intended that a person could still persuade the Department or a court that other non-specified reasonable steps were taken at reasonable times to verify that a worker was not an unlawful non-citizen.

Regulation 5.19H       Allowing a lawful non-citizen to work in breach of a work-related                          condition

 

New subregulation 5.19H(1) provides that for paragraph 245AC(2)(a) of the Act, the computer system operated by the Department, and known as "Visa Entitlement Verification Online", or "VEVO", is prescribed.

 

New paragraph 5.19H(2)(a) provides that for paragraph 245AC(2)(b) of the Act, a prescribed thing is the entry into a contract under which a party to the contract performs either or both of the following functions:

*         verifying that a person has the required permission to work in Australia (however that is described in the contract); or

*         supplying persons who have the required permission to work in Australia (however that is described in the contract).

New paragraph 5.19H(2)(b) provides that for paragraph 245AC(2)(b) of the Act, a prescribed thing is the inspection of:

*         a document that appears to be the worker's Australian passport; or

*         a document that appears to be the worker's New Zealand passport; or

*         a document that appears to be the worker's Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the worker; or

*         a document that appears to be a certificate of evidence of the worker's Australian citizenship, accompanied by a form of identification featuring a photograph of the worker; or

*         a document that appears to be the worker's Australian birth certificate, accompanied by a form of identification featuring a photograph of the worker; or

*         a document that appears to be a Certificate of Evidence of Resident Status for the worker, accompanied by a form of identification featuring a photograph of the worker; or

*         a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the worker, accompanied by a form of identification featuring a photograph of the worker.

The example after new subregulation 5.19H(2) provides that an example of a form of identification is a driver's licence.

Subsection 245AC(1) of the Act provides that a person (the first person) contravenes this subsection if:

*         the first person allows, or continues to allow, another person (the worker) to work; and

*         the worker is a lawful non-citizen; and

*         the worker holds a visa that is subject to a work-related condition; and

*         the worker is in breach of the work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a).

The note after new subregulation 5.19H(2) mirrors subsection 245AC(2) of the Act and provides that subsection 245AC(1) of the Act does not apply if reasonable steps are taken at reasonable times to verify that a worker is not in breach of a work-related condition solely because of doing the work referred to in that subsection, including (but not limited to) either of the following steps:

*         using a computer system prescribed by the regulations to verify that matter;

*         doing any one or more things prescribed by the regulations.

The purpose of this note is to outline the exception/specific defence to contravening subsection 245AC(1) of the Act. 

The purpose of new regulation 5.19H is to prescribe the computer system that a person could use to verify that a worker is not in breach of a work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a) and to prescribe steps that a person could take to verify that a worker is not in breach of a work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a) for the purposes of paragraphs 245AC(2)(a) and 245AC(2)(b).

 

New subregulation 5.19H(1) prescribes the Visa Entitlement Verification Online computer system, which is also known as VEVO, as the computer system that the first person can use to verify that the worker is not in breach of a work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a).

VEVO is a free, online service that allows visa holders and registered Australian organisations (such as Registered Migration Agents, Australian employers, labour suppliers, education providers, financial institutions and government agencies) to check the details and entitlements of a visa.  It provides real time checks and also enables visa holders to "push" visa entitlement information to third parties.

 

New paragraph 5.19H(2)(a) prescribes, as a thing that the first person can do to verify that a worker is not in breach of a work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a), the entry into a contract under which a party to the contract performs one or more of the following functions:

 

*         verifying that a person has the required permission to work in Australia (however that is described in the contract); or

*         supplying persons who have the required permission to work in Australia (however that is described in the contract).

Assuming that the contract entered into between the first person and another person was entered into at a reasonable time and was a valid written contract, the first person could rely on this contract to establish a defence to subsection 245AC(1) of the Act. 

It is intended that a contract entered into between the first person and another person could be a general contract and could either be a standing contract or an ongoing contract for the supply of labour.  For example, a contract could state that the labour supplier undertakes to only supply a labour force made up of people who can lawfully undertake the relevant work, such as Australian and New Zealand citizens, Australian permanent residents and non-citizens with the relevant work entitlements attached to a current visa. Conversely, the contract could include a specific clause to the effect that the labour supplier undertakes not to supply workers who cannot lawfully perform the relevant work.  Model contractual clauses will be made available to guide employers.

New paragraph 5.19H(2)(b) prescribes, as a thing that the first person can do to verify that a worker is not in breach of a work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a), the inspection of prescribed documents that appear to be evidence of a worker's unrestricted entitlement to work in Australia. 

Assuming that the inspection of the documents listed in paragraph 5.19H(2)(b) was done at a reasonable time, the first person could rely on this inspection to be a reasonable step and therefore establish a defence to subsection 245AC(1) of the Act. 

The types of acceptable documents that are listed in new paragraph 5.19H(2)(b) are the identification documents which can establish a person's unrestricted entitlement to work in Australia.  Further information about what documents are acceptable evidence of a person's unrestricted entitlement to work in Australia can be obtained from the Department. 

The listing in paragraph 5.19H(2)(b) of documents which appear to be a document they purport to be, rather than the actual documents, is to provide a reasonable practical allowance that the person inspecting the document should not be required to determine the actual veracity of the document(s) being sighted, beyond that the document appears to be what it purports to be. 

It is intended that if a first person verifies at a reasonable time that a worker is not in breach of a work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a), by using VEVO, by contracting out the obligation to verify that matter, or by inspecting prescribed documents that appear to be evidence of a worker's unrestricted entitlement to work in Australia, that person would be able to establish the specific defence contained in subsection 245AC(2) and therefore an exception to subsection 245AC(1) of the Act.

The drafting of the defence in subsection 245AC(2) makes it clear that the reasonable steps specified in paragraphs 245AC(2)(a) and 245AC(2)(b) are not exhaustive.  It is intended that a person could still persuade the Department or a court that other non-specified reasonable steps were taken at reasonable times to verify that worker was not in breach of a work-related condition solely because of doing the work referred to in paragraph 245AC(1)(a).

Regulation 5.19J        Referring an unlawful non-citizen for work

 

New subregulation 5.19J(1) provides that for paragraph 245AE(2)(a) of the Act, the computer system operated by the Department, and known as "Visa Entitlement Verification Online", or "VEVO", is prescribed.

New paragraph 5.19J(2)(a) provides that for paragraph 245AE(2)(b) of the Act, a prescribed thing is the entry into a contract under which a party to the contract performs the function of verifying that a person has, or will have, the required permission to work in Australia (however that is described in the contract).

Subsection 245AE(1) of the Act provides that a person (the first person) contravenes this subsection if:

*         the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and

*         the first person refers another person (the prospective worker) to a third person for work; and

*         at the time of the referral, the prospective worker is an unlawful non-citizen.

New paragraph 5.19J(2)(b) provides that for paragraph 245AE(2)(b) of the Act, a prescribed thing is the inspection of:

*         a document that appears to be the prospective worker's Australian passport; or

*         a document that appears to be the prospective worker's New Zealand passport; or

*         a document that appears to be the prospective worker's Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the prospective worker; or

*         a document that appears to be a certificate of evidence of the prospective worker's Australian citizenship, accompanied by a form of identification featuring a photograph of the prospective worker; or

*         a document that appears to be the prospective worker's Australian birth certificate, accompanied by a form of identification featuring a photograph of the prospective worker; or

*         a document that appears to be a Certificate of Evidence of Resident Status for the prospective worker, accompanied by a form of identification featuring a photograph of the prospective worker; or

*         a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the prospective worker, accompanied by a form of identification featuring a photograph of the prospective worker.

The example after new subregulation 5.19J(2) provides that an example of a form of identification is a driver's licence.

Subsection 245AE(1) of the Act provides that a person (the first person) contravenes this subsection if:

*         the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and

*         the first person refers another person (the prospective worker) to a third person for work; and

*         at the time of the referral, the prospective worker is an unlawful non-citizen. 

The note after subregulation 5.19J(2) mirrors subsection 245AE(2) of the Act and provides that subsection 245AE(1) of the Act does not apply if reasonable steps are taken at reasonable times before the referral to verify that a prospective worker is not an unlawful non-citizen, including (but not limited to) either of the following steps:

 

*         using a computer system prescribed by the regulations to verify that matter;

*         doing any one or more things prescribed by the regulations.

The purpose of this note is to outline the exception/specific defence to contravening subsection 245AE(1) of the Act. 

 

The purpose of new regulation 5.19J is to prescribe the computer system that a person could use to verify that a prospective worker is not an unlawful non-citizen for the purposes of paragraph 245AE(2)(a) and to prescribe steps that a person could take to verify that a prospective worker is not an unlawful non-citizen, before the referral for the purposes of paragraph 245AE(2)(b).

 

New subregulation 5.19J(1) prescribes the Visa Entitlement Verification Online computer system, which is also known as VEVO, as the computer system that the first person can use to verify that the prospective worker is not an unlawful non-citizen.

VEVO is a free, online service that allows visa holders and registered Australian organisations (such as Registered Migration Agents, Australian employers, labour suppliers, education providers, financial institutions and government agencies) to check the details and entitlements of a visa.  It provides real time checks and also enables visa holders to "push" visa entitlement information to third parties.

 

New paragraph 5.19J(2)(a) prescribes, as a thing the first person can do to verify that the prospective worker is not an unlawful non-citizen, the entry into a contract under which a party to the contract performs the function of verifying that a person has, or will have, the required permission to work in Australia (however that is described in the contract).

 

Assuming that the contract entered into between the first person and another person was entered into at a reasonable time before the referral and was a valid written contract, the first person could rely on this contract to establish a defence to subsection 245AE(1) of the Act. 

It is intended, in the referral context, that a contract entered into between the referrer and another person may be for a party to the contract to perform the function of verifying work entitlements.  However, the contract could also be a labour supply contract between the referrer and another labour supplier.  For example, a contract could state that the labour supplier undertakes to only supply a labour force to the referrer made up of people who can lawfully undertake the relevant work, such as Australian and New Zealand citizens, Australian permanent residents and non-citizens with the relevant work entitlements attached to a current visa. Conversely, the contract could include a specific clause to the effect that the other labour supplier undertakes not to supply workers to the referrer who cannot lawfully perform the relevant work. Model contractual clauses will be made available to guide labour hire referrers.

New paragraph 5.19J(2)(b) prescribes, as a thing that the first person can do to verify that a prospective worker is not an unlawful non-citizen, the inspection of prescribed documents that appear to be evidence of a worker's lawful status in Australia. 

Assuming that the inspection of the documents listed in paragraph 5.19J(2)(b) was done at a reasonable time, the first person could rely on this inspection to be a reasonable step and therefore establish a defence to subsection 245AE(1) of the Act. 

The types of acceptable documents that are listed in new paragraph 5.19J(2)(b) are the identification documents which can establish a person's lawful status in Australia. 
Further information about what documents are acceptable evidence of a person's lawful status in Australia can be obtained from the Department. 

The listing in paragraph 5.19J(2)(b) of documents which appear to be a document they purport to be, rather than the actual documents, is to provide a reasonable practical allowance that the person inspecting the document should not be required to determine the actual veracity of the document(s) being sighted, beyond that the document appears to be what it purports to be. 

It is intended that if a first person verifies, at a reasonable time before the referral, that a prospective worker is not an unlawful non-citizen, by using VEVO, by contracting out the obligation to verify that a prospective worker is not an unlawful non-citizen or by inspecting prescribed documents that appear to be evidence of a prospective worker's lawful status in Australia, that person would be able to establish the specific defence contained in subsection 245AE(2) and therefore an exception to subsection 245AE(1) of the Act.

The drafting of the defence in subsection 245AE(2) makes it clear that the reasonable steps specified in paragraphs 245AE(2)(a) and 245AE(2)(b) are not exhaustive.  It is intended that a person could still persuade the Department or a court that other non-specified reasonable steps were taken at reasonable times, before the referral, to verify that a prospective worker was not an unlawful non-citizen.

Regulation 5.19K       Referring a lawful non-citizen for work in breach of a work-related condition

 

New regulation 5.19K provides that for paragraph 245AEA(2)(a) of the Act, the computer system operated by the Department, and known as "Visa Entitlement Verification Online", or "VEVO", is prescribed.

 

New paragraph 5.19K(2)(a) provides that for paragraph 245AEA(2)(b) of the Act, a prescribed thing is the entry into a contract under which a party to the contract performs the function of verifying that a person has, or will have, the required permission to work in Australia (however that is described in the contract).

 

New paragraph 5.19K(2)(b) provides that for paragraph 245AEA(2)(b) of the Act, a prescribed thing is the inspection of:

*         a document that appears to be the prospective worker's Australian passport; or

*         a document that appears to be the prospective worker's New Zealand passport; or

*         a document that appears to be the prospective worker's Australian certificate of citizenship, accompanied by a form of identification featuring a photograph of the prospective worker; or

*         a document that appears to be a certificate of evidence of the prospective worker's Australian citizenship, accompanied by a form of identification featuring a photograph of the prospective worker; or

*         a document that appears to be the prospective worker's Australian birth certificate, accompanied by a form of identification featuring a photograph of the prospective worker; or

*         a document that appears to be a Certificate of Evidence of Resident Status for the prospective worker, accompanied by a form of identification featuring a photograph of the prospective worker; or

*         a document that appears to be a Certificate of Status for New Zealand Citizens in Australia for the prospective worker, accompanied by a form of identification featuring a photograph of the prospective worker.

The example after new subregulation 5.19K(2) provides that an example of a form of identification is a driver's licence.

Subsection 245AEA(1) of the Act provides that a person (the first person) contravenes this subsection if:

*         the first person operates a service, whether for reward or otherwise, referring other persons to third persons for work; and

*         the first person refers another person (the prospective worker) to a third person for work; and

*         at the time of the referral:

-          the prospective worker is a lawful non-citizen; and

-          the prospective worker holds a visa that is subject to a work-related condition; and

*         the prospective worker will be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred.

The note after subregulation 5.19K(2) mirrors subsection 245AEA(2) of the Act and provides that subsection 245AEA(1) of the Act does not apply if reasonable steps are taken at reasonable times before the referral to verify that a prospective worker will not be in breach of a work-related condition solely because of doing the work in relation to which he or she is referred, including (but not limited to) either of the following steps:

 

*         using a computer system prescribed by the regulations to verify that matter;

*         doing any one or more things prescribed by the regulations.

The purpose of this note is to outline the exception/specific defence to contravening subsection 245AEA(1) of the Act. 

 

The purpose of new regulation 5.19K is to prescribe the computer system that a person could use to verify that a prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred for the purposes of paragraph 245AEA(2)(a) and to prescribe steps that a person could take to verify that a prospective worker will not be in breach of the work-related condition solely because of doing the work in relation to which he or she is referred for the purposes of paragraph 245AEA(2)(b).

 

New subregulation 5.19K(1) provides the Visa Entitlement Verification Online computer system, which is also known as VEVO, as the computer system that the first person can use to verify that the prospective worker will not be in breach of a work-related condition solely because of doing the work in relation to which he or she is referred.

VEVO is a free, online service that allows visa holders and registered Australian organisations (such as Registered Migration Agents, Australian employers, labour suppliers, education providers, financial institutions and government agencies) to check the details and entitlements of a visa.  It provides real time checks and also enables visa holders to "push" visa entitlement information to third parties.

New paragraph 5.19K(2)(a) prescribes, as a thing that the first person can do to verify that a prospective worker will not be in breach of a work-related condition solely because of doing the work in relation to which he or she is referred, the entry into a contract under which a party to the contract performs the function of verifying that a person has, or will have, the required permission to work in Australia (however that is described in the contract).

 

Assuming that the contract entered into between the first person and another person was entered into at a reasonable time before the referral and was a valid written contract, the first person could rely on this contract to establish a defence to subsection 245AEA(1) of the Act. 

 

It is intended, in the referral context, that a contract entered into between the referrer and another person may be for a party to the contract to perform the function of verifying work entitlements.  However, the contract could also be a labour supply contract between the referrer and an employer.  For example, a contract could state that the employer does not use workers referred unless they can lawfully undertake the relevant work, such as Australian and New Zealand citizens, Australian permanent residents and non-citizens with the relevant work entitlements attached to a current visa.  This clause would protect a referrer in circumstances where the specific conditions of work for which a person has been referred has not been specified by the employer such as the amount of hours or type of work.  Model contractual clauses will be made available to guide labour hire referrers.

New paragraph 5.19K(2)(b) prescribes, as a thing that the first person can do to verify that a prospective worker will not be in breach of a work-related condition solely because of doing the work in relation to which he or she is referred, the inspection of prescribed documents that appear to be evidence of a worker's unrestricted entitlement to work in Australia. 

Assuming that the inspection of the documents listed in paragraph 5.19K(2)(b) was done at a reasonable time before the referral, the first person could rely on this inspection to be a reasonable step and therefore establish a defence to subsection 245AEA(1) of the Act. 

The types of acceptable documents that are listed in new paragraph 5.19K(2)(b) are the identification documents which can establish a person's unrestricted entitlement to work in Australia.  Further information about what documents are acceptable evidence of a person's unrestricted entitlement to work in Australia can be obtained from the Department. 

The listing in paragraph 5.19K(2)(b) of documents which appear to be a document they purport to be, rather than the actual documents, is to provide a reasonable practical allowance that the person inspecting the document should not be required to determine the actual veracity of the document(s) being sighted, beyond that the document appears to be what it purports to be. 

It is intended that if a first person verifies at a reasonable time before the referral, that a prospective worker will not be in breach of a work-related condition solely because of doing the work in relation to which he or she is referred, by using VEVO, by contracting out the obligation to verify that matter or by inspecting prescribed documents that appear to be evidence of a prospective worker's unrestricted entitlement to work in Australia, that person would be able to establish the specific defence contained in subsection 245AEA(2) and therefore an exception to subsection 245AEA(1) of the Act.

The drafting of the defence in subsection 245AEA(2) makes it clear that the reasonable steps specified in paragraphs 245AEA(2)(a) and 245AEA(2)(b) are not exhaustive. 
It is intended that a person could still persuade the Department or a court that other non-specified reasonable steps were taken at reasonable times before the referral to verify that a prospective worker was not in breach of a work-related condition solely because of doing the work in relation to which he or she was referred.

Item [4] - Regulation 5.20A

 

This item repeals regulation 5.20A and substitutes new regulation 5.20A. 

 

The Employer Sanctions Act repealed section 140R of the Act and inserted a new section 506A.  New section 506A creates a new regulation-making power in relation to infringement notice schemes and replaces old section 140R. 

 

Under new subsection 506A(1), the regulations may provide for a person who is alleged to have contravened a civil penalty provision to pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

Under new subsection 506A(2), the penalty must not exceed one-fifth of the maximum penalty that a court could impose on the person for a contravention of the civil penalty provision.

Subsection 5(1) of the Act provides that civil penalty order has the meaning given by subsection 486R(4).  Subsection 486R(4) of the Act provides that an order made under subsection 486R(3) is a civil penalty order.  Subsection 486R(1) provides that the Minister may apply to an eligible court for an order that a person, who is alleged to have contravened a civil penalty provision, pay the Commonwealth a pecuniary penalty. Subsection 486R(3), provides that if the eligible court is satisfied that the person has contravened a civil penalty provision, the court may order the person to pay to the Commonwealth such pecuniary penalty for the contravention as the court determines to be appropriate.  Such an order will be referred to as a civil penalty order.  

As the Employer Sanctions Act creates new work-related civil penalty provisions, section 506A has been drafted to create a new regulation-making power in relation to infringement notice schemes to apply to the new work-related civil penalty provisions, the current sponsorship-related civil penalty provisions and any future civil penalty provisions a government may wish to enact. 

Current regulation 5.20A is titled "Prescribed penalties - civil penalties (Act, ss 140Q, 140XE, 140XF)".  It provides, for the purposes of subsection 140R(1) of the Act, the amount that a person can pay as an alternative to the Minister applying to the court for an order that a pecuniary penalty be paid for a contravention of subsections 140Q(1), 140Q(2), 140XE(3) or 140XF(3) of the Act, if they are issued with an infringement notice.

Current paragraph 5.20A(a) provides that where a person has previously been issued with an infringement notice for an alleged contravention of a civil penalty provision or has been ordered by a Court to pay a pecuniary penalty for contravention of a civil penalty provision, the prescribed penalty is 12 penalty units for a natural person, and 60 penalty units for a body corporate.

Current paragraph 5.20A(b) provides that where a person is issued with an infringement notice, and they have not previously been issued with an infringement notice for an alleged contravention of a civil penalty provision, and have not been ordered by a Court to pay a pecuniary penalty for contravention of a civil penalty provision, the prescribed penalty payable is 6 penalty units for a natural person and 30 penalty units for a body corporate.

New regulation 5.20A is titled "Infringement notices - penalty payable to the Commonwealth for section 140Q, 140XE, 140XF, 245AB, 245AC, 245AE or 245AEA of the Act".  It provides, for the purposes of subsection 506A(1) of the Act, the amount that a person can pay as an alternative to proceedings for a civil penalty order against the person, if they are issued with an infringement notice for either sponsorship-related civil penalty provisions or work-related civil penalty provisions.

The ability to issue infringement notices as an alternative to proceedings for a civil penalty order against a person will provide the Department with flexibility to appropriately, and expeditiously, deal with less serious contraventions of civil penalty provisions in the Act.

Sponsorship-related civil penalty provisions

New subregulations 5.20A(1), 5.20A(2) and 5.20A(3) applies to sponsorship-related civil penalty provisions. 

New subregulation 5.20A(1) provides that for subsection 506A(1) of the Act, a person who is alleged to have contravened subsection 140Q(1), 140Q(2), 140XE(3) or 140XF(3) of the Act may pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

New subregulation 5.20A(2) provides that if the person has previously been issued an infringement notice for an alleged contravention of any of the sponsorship-related civil penalty provisions, or has been ordered by a Court to pay a pecuniary penalty for a contravention of any of the sponsorship-related civil penalty provisions subsections, the penalty is 12 penalty units for a natural person, or 60 penalty units for a body corporate.

This penalty is one-fifth of the maximum penalty that a court could impose on the person for a contravention of a sponsorship-related civil penalty provision.  It is also the maximum penalty which, under subsection 506A(2) of the Act, may be prescribed in the regulations as the amount that a person can pay as an alternative to proceedings for a civil penalty order against the person.

New subregulation 5.20A(3) provides that if subregulation 5.20A(2) does not apply, and someone has not previously been issued an infringement notice for an alleged contravention of any of the sponsorship-related civil penalty provisions, and has not been ordered by a Court to pay a pecuniary penalty for a contravention of any of those sponsorship-related civil penalty provisions, the penalty is 6 penalty units for a natural person, or 30 penalty units for a body corporate.

This penalty is one-tenth of the maximum penalty that a court could impose on the person for a contravention of a sponsorship-related civil penalty provision

New subregulations 5.20A(2) and 5.20A(3) provides for a two-tiered approach to the issue of infringement notice as an alternative to proceedings for a civil penalty order against a person for contravention of a sponsorship-related civil penalty provisions.  They recognise that persons who have been issued with an infringement notice or been ordered by a Court to pay a pecuniary penalty, for a contravention of a sponsorship-related civil penalty provision should be required to pay a higher amount than persons who contravened a sponsorship-related civil penalty provision for the first time.

The fact that a person has not previously been issued an infringement notice for an alleged contravention of any of the work-related civil penalty provisions, and has not been ordered by a Court to pay a pecuniary penalty for a contravention of any of the work-related civil penalty provisions, is not be relevant to assessing whether a person would have to pay a penalty as prescribed under subregulation 5.20A(2) or subregulation 5.20A(3).

Work-related civil penalty provisions

 

New subregulations 5.20A(4), 5.20A(5) and 5.20A(6) applies to work-related civil penalty provisions. 

New subregulation 5.20A(4) provides that for subsection 506A(1) of the Act, a person who is alleged to have contravened subsection 245AB(5), 245AC(5), 245AE(5) or 245AEA(5) of the Act may pay a penalty to the Commonwealth as an alternative to proceedings for a civil penalty order against the person.

New subregulation 5.20A(5) provides that if the person has previously been issued an infringement notice for an alleged contravention of any of the work-related civil penalty provisions, or has been ordered by a Court to pay a pecuniary penalty for a contravention of any of the work-related civil penalty provisions, the penalty is 18 penalty units for a natural person, or 90 penalty units for a body corporate.

This penalty is one-fifth of the maximum penalty that a court could impose on the person for a contravention of a work-related civil penalty provision. It is also the maximum penalty which, under subsection 506A(2) of the Act, may be prescribed in the regulations as the amount that a person can pay as an alternative to proceedings for a civil penalty order against the person.

New subregulation 5.20A(6) provides that if subregulation 5.20A(5) does not apply, and someone has not previously been issued an infringement notice for an alleged contravention of any of the work-related civil penalty provisions, and has not been ordered by a Court to pay a pecuniary penalty for a contravention of any of the work-related civil penalty provisions, the penalty is 9 penalty units for a natural person, or 45 penalty units for a body corporate.

This penalty is one-tenth of the maximum penalty that a court could impose on the person for a contravention of a work-related civil penalty provision.

New subregulations 5.20A(5) and 5.20A(6) provides for a two-tiered approach to the issue of an infringement notice as an alternative to proceedings for a civil penalty order against a person for contravention of any of the work-related civil penalty provisions.  It recognises that persons who have been issued with an infringement notice or been ordered by a Court to pay a pecuniary penalty, for a contravention of a work-related civil penalty provision should be required to pay a higher amount than persons who contravened a work-related civil penalty provision for the first time. 

The fact that a person has not previously been issued an infringement notice for an alleged contravention of any of the sponsorship-related civil penalty provisions, and has not been ordered by a Court to pay a pecuniary penalty for a contravention of any of the
sponsorship-related civil penalty provisions, is not relevant to assessing whether a person would have to pay a penalty as prescribed under subregulation 5.20A(5) or
subregulation 5.20A(6).

Item [5] - Subregulation 5.21(1)

 

This item omits the words "(1) In this Division:" in subregulation 5.21(1) and substitute the words "In this Division:". 

 

This amendment is a minor and technical amendment.

 

Item [6] - Subregulation 5.21(1)

 

This item inserts a definition of civil penalty provision in subregulation 5.21(1).

 

The new definition provides that civil penalty provision means any of the following provisions of the Act:

 

*         subsection 140Q(1);

*         subsection 140Q(2);

*         subsection 140XE(3);

*         subsection 140XF(3);

*         subsection 245AB(5);

*         subsection 245AC(5)

*         subsection 245AE(5);

*         subsection 245AEA(5).

 

Current subregulation 5.21(1) defines offence to mean a contravention of section 137, 229 or 230 of the Act; or subsection 245N(2) of the Act.  While there are several other offences contained in the Act, the definition in subregulation 5.21(1) lists only those offences in the Act for which an infringement notice can be issued, as an alternative to prosecution.

The purpose of this amendment is to list all the civil penalty provisions in the Act for which an infringement notice could be issued as an alternative to proceedings for a civil penalty order against the person.

There are other civil penalty provisions in the Act for which it is not intended that an infringement notice could be issued, for example subsection 245AK(2).  This is because Chapter 6.2.1 of the Attorney-General's Department's A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers states that in the context of maintaining the efficacy of an infringement notice scheme, to ensure accuracy, assessments should be based on straightforward and objective criteria rather than complex legal distinctions.  Civil penalty provisions like subsection 245AK(2) are made up of subjective elements that are complex and therefore it would not be appropriate to issue an infringement notice as an alternative to proceedings for a civil penalty order against a person for an alleged contravention of subsection 245AK(2).

Item [7] - Subregulation 5.21(1), definition of prescribed penalty

 

This item repeals and substitutes the definition of prescribed penalty in
subregulation 5.21(1). 

 

The current definition provides that prescribed penalty means:

 

*         in relation to an offence the penalty prescribed by regulation 5.20 for the offence; or

*         in relation to a civil penalty provision the penalty prescribed by regulation 5.20A for a contravention of the civil penalty provision.

 

The new definition provides that prescribed penalty means the penalty prescribed by regulation 5.20 for an offence.  As subsection 140R(2) was replaced with new subsection 506A(2), the term "prescribed penalty" will no longer be used to refer to the maximum penalty that could be imposed by way of an infringement notice in relation to a civil penalty provision.  The term "prescribed penalty" however will still be used in relation to offences and this term is referred to in paragraphs 504(1)(i), 504(1)(j) and 504(1)(jaa) of the Act. 

 

Item [8] - Subregulation 5.21(1)

 

This item inserts a definition of sponsorship-related civil penalty provision in subregulation 5.21(1).

 

The new definition provides that sponsorship-related civil penalty provision means any of the following provisions of the Act:

 

*         subsection 140Q(1);

*         subsection 140Q(2);

*         subsection 140XE(3);

*         subsection 140XF(3).

 

The purpose of this amendment is to list all the sponsorship-related civil penalty provisions in the Act for which an infringement notice could be issued as an alternative to proceedings for a civil penalty order against the person.

Item [9] - Subregulation 5.21(1)

 

This item inserts a definition of work-related civil penalty provision in subregulation 5.21(1).

 

The new definition provides that work-related civil penalty provision means any of the following provisions of the Act:

 

*         subsection 245AB(5);

*         subsection 245AC(5);

*         subsection 245AE(5);

*         subsection 245AEA(5).

 

The purpose of this amendment is to list all the work-related civil penalty provisions in the Act for which an infringement notice could be issued as an alternative to proceedings for a civil penalty order against the person.

Item [10] - Subregulation 5.21(1), notes 1 and 2

 

This item repeals the notes and substitutes new notes following subregulation 5.21(1).

 

Current note 1 following subregulation 5.21(1) describes the offences in sections 137, 229 and 230 and subsections 245L(2) and 245N(2) of the Act.  The note also describes the civil penalty provisions in subsections 140Q(1), 140Q(2), 140XE(3) and 140XF(3).

 

The new note removes the descriptions of the civil penalty provisions and only describes the offences in sections 137, 229 and 230 and subsections 245L(2) and 245N(2) of the Act. 

This amendment is a consequential and technical amendment.  As new work-related civil penalty provisions have been created by the Employer Sanctions Act and they are lengthy, it is not practical to describe them in note 1 following subregulation 5.21(1).  To ensure consistency with what provisions are described, the descriptions of the sponsorship-related civil penalty provisions have also been removed.

 

Current note 2 provides that civil penalty provision is defined in subsection 5(1) of the Act.  This note has been repealed.

This amendment is a consequential amendment to the new definition of civil penalty provision that is inserted by item 6 above.  The new definition lists all the civil penalty provisions in the Act for which an infringement notice could be issued as an alternative to proceedings for a civil penalty order against the person.

Item [11] - Paragraph 5.23(1)(g)

 

This item omits the words "notice; and", and substitutes them with the word "notice." in paragraph 5.23(1)(g).

 

The amendment is consequential to the amendment made by item 12 below.

Item [12] - Paragraph 5.23(1)(h)

 

This item repeals paragraph 5.23(1)(h). 

 

Current paragraph 5.23(1)(h) provides that if the infringement notice is for an alleged contravention of a civil penalty provision, it must include a statement that if the provision is contravened after the day on which, or the period over which, the contravention specified in the notice occurred, the person will have contravened the provision again and further action may be taken to sanction the person as listed in section 140K of the Act.

Current paragraph 5.23(1)(h) refers to section 140K of the Act and is only applicable to the sponsorship-related civil penalty provisions.  However, as drafted, it would be a requirement to include the information specified in paragraph 5.23(1)(h) in an infringement notice for a contravention of a work-related civil penalty provision.  This is not the policy intention.  

Item [13] - Subregulation 5.23(2)

 

This item repeals and substitutes subregulation 5.23(2).  It also inserts new
subregulations 5.23(3), 5.23(4) and 5.23(5). 

Current subregulation 5.23(2) provides that an infringement notice may contain any other particular that the authorised officer considers necessary.

New subregulation 5.23(2) provides that an infringement notice for a contravention of a sponsorship-related civil penalty provision must also state that if the provision is contravened after the day on which, or the period over which, the contravention specified in the notice occurred:

*         the person will have contravened the provision again; and

*         further action may be taken as mentioned in section 140K of the Act.

New subregulation 5.23(2) mirrors current paragraph 5.23(1)(h) which is repealed by item 12 above.  Current paragraph 5.23(1)(h) refers to section 140K of the Act and is only applicable to the sponsorship-related civil penalty provisions.  However, as drafted, it would be a requirement to include the information specified in paragraph 5.23(1)(h) in an infringement notice for a contravention of a work-related civil penalty provision.  As this is not the policy intention, new subregulation 5.23(2) has been drafted to limit this requirement to infringement notices for a contravention of sponsorship-related civil penalty provisions only.

The purpose of new subregulation 5.23(2) is to ensure that a person who is issued with an infringement notice for an alleged contravention of a sponsorship-related civil penalty provision is aware that if they subsequently contravene the sponsorship-related civil penalty provision, the fact that they have already been issued with an infringement notice for one contravention of the sponsorship-related civil penalty provision does not prevent the Minister from taking further sanction action against the person in relation to a further contravention of the sponsorship-related civil penalty provision, including issuing another infringement notice.

New subregulation 5.23(3) provides that an infringement notice for a contravention of a work-related civil penalty provision must also state the grounds on which the infringement notice may be withdrawn.

New subregulation 5.23(4) provides that an infringement notice for a contravention of a work-related civil penalty provision must also state that the grounds on which the infringement notice may be withdrawn are not exhaustive.

Chapter 6.8.3 of the Guide to Framing Commonwealth Offences, Infringement notices and Enforcement Powers discusses a recipient's right to make representations as to why an infringement notice should be withdrawn.  The discussion includes advice that an infringement notice may indicate some of the grounds upon which the decision to withdraw the notice may be exercised.  The purpose of this amendment is to require the Department to state the grounds on which an infringement notice in relation to work-related civil penalty provisions may be withdrawn. 

Statutory defences will be available for persons alleged to have contravened work-related provisions including those that have been prescribed by item 3 above.  These defences are exceptions to the work-related civil penalty provisions.  It is intended that infringement notices issued for a contravention of a work-related civil penalty provision contain a list of these statutory defences so that persons are aware that they are not be required to pay the infringement notice if they took reasonable steps at reasonable times. 

As statutory defences are a non-exhaustive list, it is intended for the Department to retain flexibility to withdraw an infringement notice on grounds that are not contained in the infringement notice.

New subregulation 5.23(5) provides that an infringement notice may contain any other particulars that the authorised officer considers necessary.

New subregulation 5.23(5) mirrors current subregulation 5.23(2).

The purpose of this amendment is to provide that an infringement notice may contain any other particulars that the authorised officer considers necessary.  This could include circumstances of the contravention and any other relevant details.

ATTACHMENT C

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

 

Migration Amendment Regulation 2013 (No. 3)

This Legislative Instrument is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

 

Overview of the Legislative Instrument

This legislative instrument creates regulation changes to complement the Migration Amendment (Reform of Employer Sanctions) Act 2013 (the Employer Sanctions Act).  The Employer Sanctions Act amends the Migration Act 1958 (the Act) to create non-fault civil penalty provisions to supplement the amended criminal offences (the work-related offences and work-related provisions) which would be contravened in circumstances where a person allows or refers for work non-citizens who do not have the required permission to work.  Not having the required permission encompasses persons who are unlawful non-citizens or persons who have a visa which is subject to a work related condition and work in breach of that condition. 

In addition, the Act will create an infringement notice scheme with a financial penalty as an alternative to commencing civil penalty proceedings for contraventions of the work-related provisions.  

The purpose of the instrument is to amend the Migration Regulations 1994
 (the Regulations) to:

*               extend the infringement notice scheme contained in Division 5.4 and 5.5 of Part 5 of the Regulations to the new work-related provisions contained in new Subdivision C of Division 12 of Part 2 of the Act inserted by the Employer Sanctions Act  (subsection 245AB(1), 245AC(1), 245AE(1), 245AEA(1));

*               prescribe "Visa Entitlement Verification Online", or "VEVO" as the computer system that a person could use at reasonable times to verify that a worker or prospective worker has the required permission to work under the Act for the purposes of establishing a defence/exception to the new work-related offences and work-related provisions contained in new Subdivision C of Division 12 of Part 2 of the Employer Sanctions Act;

*               prescribe the following things as a reasonable step that a person could take at reasonable times to verify that a worker or prospective worker has the required permission to work under the Act for the purposes of establishing a defence/exception to the new work-related offences and work-related provisions contained in new Subdivision C of Division 12 of Part 2 of the Employer Sanctions Act:

o   the entry into a contract under which a party to the contract performs the function of either verifying that a person has, or will have, the required permission to work in Australia (however that is described in the contract); or, for paragraph 245AB(2)(a) and 245AC(2)(a) of the Employer Sanctions Act, supplying persons who have the required permission to work in Australia (however that is described in the contract); and

o   the inspection of prescribed documents that appear to be evidence of a worker's unrestricted entitlement to work in Australia.

Human rights implications

The amendments made by the Regulation includes a measure which prescribes the VEVO system as the computer system that a person could use, at reasonable times, to verify that a worker or prospective worker has the required permission to work under the Act for the purposes of establishing a defence/exception to the new work-related offences and work-related provisions. 

VEVO is a free online computer system operated by the Department of Immigration and Citizenship (the Department) which allows visa holders and registered Australian users, such as employers, to check visa details and entitlements.  VEVO provides real time checks and also enables visa holders to 'push' visa entitlement information to third parties.  It is a computer system that a person can rely on to verify that a worker has the required permission to work in Australia, and assist in supplying information about non-citizens who have the required permission to work in Australia, such as visa expiry dates and limitations on the hours of work that can lawfully be undertaken.

The amendments include a measure where a person could enter into a contract, at a reasonable time, under which a party to the contract performs the function of verifying that a person has, or will have, the required permission to work in Australia.  This function could involve the other party using VEVO, among other things.

In addition, where a person asserts they have an unrestricted entitlement to work in Australia (for example they claim to be an Australian Citizen), an employer or referrer could rely on the inspection of certain documents as listed in new paragraphs 5.19G(2)(b), 5.19H(2)(b), 5.19J(2)(b), 5.19K(2)(b), for the purposes of establishing a defence/exception to the new work-related offences and work-related provisions.

A contravention of the work-related offences or work-related provisions of the Act will occur if a person allows or refers another person to work when the worker does not have the required permission to do so.  Providing persons with a mechanism for determining whether another person may be an unlawful non-citizen or whether a non-citizen has appropriate work entitlements may be relevant to the right to privacy in relation to that worker/prospective worker.

 

Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) provides:

The States Parties to the present Covenant recognize the right to work, which includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts, and will take appropriate steps to safeguard this right.

 

In relation to Australian citizens and Australian permanent residents, the measure clearly supports the Australian Government's recognition of the right to work, given that documentation which supports the unlimited right to work can be assessed.

 

The United Nation Committee on Economic, Social and Cultural Rights (UNCESCR), in its General Comment on Article 6 (E/C.12/GC/19) has stated (at 4):

 

'The right to work, as guaranteed in the ICESCR, affirms the obligation of States parties to assure individuals their right to freely chosen or accepted work, including the right not to be deprived of work unfairly. This definition underlines the fact that respect for the individual and his dignity is expressed through the freedom of the individual regarding the choice to work, while emphasizing the importance of work for personal development as well as for social and economic inclusion.'

 

In relation to non-citizens (though not permanent residents), it is the long standing position of the Australian Government that an authority from the Australian Government needs to be granted before a non-citizen is permitted to work.  This authority and associated 'work rights' are attached to certain types of visas.  A person is not permitted to work in Australia unless work rights have been granted, and merely by arriving lawfully in Australia does not entitle a person to work in the absence of a visa with work rights.

 

Article 4 of ICESCR provides that the State may subject the rights enunciated in the ICESCR:

 

' ... only to such limitations as are determined by law only insofar as this may be compatible with the nature of these rights and solely for the purpose of promoting the general welfare in democratic society.'

 

Inasmuch as this measure ensures that an employer can assess whether a non-citizen has those 'work rights', and as this limitation is not inconsistent with Article 4, Article 6 is not engaged.

 

Article 17(1) of the International Covenant on Civil and Political Rights (ICCPR) states that:

'No one shall be subjected to arbitrary or unlawful interference with his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation.'

 

 

Article 17(2) of the ICCPR states that:

'Everyone has the right to the protection of the law against such interference or attacks.'

Under the visa application process, a non-citizen consents to providing information to the Australian Government in order to process an application, including relevant information if applicable if that person seeks associated work entitlements.  Information collected for this purpose does not amount to 'interference' as this information is provided on a consensual basis.  In addition, inspecting, among other things, passports, certificates of citizenship and birth certificates is based on the premise that a person seeking legitimate forms of employment in Australia would consent to producing a relevant document of identity to establish that they have the appropriate entitlement to work in Australia. 

Retaining, using and release of information relating to a non-citizen's status on VEVO will be done consistently with the Privacy Act 1988 and the relevant Information Privacy Principles (IPPs) (reflecting Article 17(2)).  The purpose of VEVO is to ensure that there are sound and robust integrity measures surrounding non-citizens working in Australia.

The Human Rights Committee General Comment No. 16: The right to respect of privacy, family, home and correspondence, and protection of honour and reputation (Art. 17) contemplates this situation (at 10):

'The gathering and holding of personal information on computers, data banks and other devices, whether by public authorities or private individuals or bodies, must be regulated by law. Effective measures have to be taken by States to ensure that information concerning a person's private life does not reach the hands of persons who are not authorized by law to receive, process and use it, and is never used for purposes incompatible with the Covenant.' (emphasis added)

The provision of information through VEVO, in the context of identifying whether a person is permitted to allow or refer a non-citizen to work, does not constitute 'interference' with a non-citizen's privacy.  Generally, in seeking employment in Australia on a legitimate basis in the labour market, a non-citizen will consensually provide information relating to work entitlements to a prospective employer or relevant third party such as a recruitment agent. 

An organisation wishing to use VEVO to verify work entitlements must register with the Department.  They are subsequently obliged to obtain consent from workers prior to verifying entitlements.  Further, only information sufficient for a person to establish a non-citizen's lawful status and relevant work entitlements is made available.  Additionally, a visa holder may elect to 'push' their visa entitlements information directly to a third party, rather than agreeing to the third party accessing their information on VEVO.  It therefore satisfies the requirements set out in General Comment 16.

If an argument is advanced that providing a facility for prospective employers to enquire as to the status of a non-citizen somehow amounts to an interference with their privacy, it could neither be described as 'unlawful' (given it will need to comply with the IPPs and will be given a lawful basis in both the Act and Regulations) nor 'arbitrary' (i.e. unreasonable or capricious).

In addition, prescribing as a defence/exception the inspection of certain documents for the purpose of ensuring that a person has an unrestricted entitlement to work in Australia (and to avoid being liable for a contravention of the work-related penalty provisions and work-related offences) does not constitute arbitrary interference with privacy (per Article 17(1)). 

It could be argued that encouraging, through prescribing this defence/exception in the Regulations, a situation where persons in Australia with an automatic entitlement to work in Australia (such as persons who are citizens) to provide documentation, such as a certificate of citizenship or a passport, when they are not obliged to (apart from the operation of these Regulations), is an interference with privacy.  However, such interference could not be considered 'arbitrary'.  The requirement to ensure that employers only employ persons who have a lawful entitlement to work in Australia is legitimate, reasonable and proportionate.

These legitimate, reasonable and proportionate measures have been introduced to ensure that there are sufficient safeguards to ensure that persons allow to or refer for work only those workers who have a lawful basis to work, or else face significant sanctions, and only information to establish a lawful basis for work will be provided.  Similarly, the measure is legitimate in that it contains significant disincentives for employers who knowingly employ non-citizens without the required permission to work and use that fact to exploit them.

For the reasons set out above, it is considered that with elements of consent, and the fact that there is no 'interference', Article 17(1) and consequently Article 17(2) are not engaged.

Conclusion

This Legislative Instrument mostly does not engage applicable human rights but to the extent that it does, is legitimate, reasonable and proportionate to the outcomes the measures seek to achieve.

 

The Hon. Brendan O'Connor, Minister for Immigration and Citizenship